Employment and Immigration Status of Nonimmigrant Alien Soccer Players During Strike in the North American Soccer League (II) ( 1979 )

July 18, 1979
79-53 MEMORANDUM OPINION FOR THE
SECRETARY OF LABOR
Immigration and Nationality Act—8 U.S.C.
§ 1101(a)(15)(H)—Nonimmigrant Aliens—Soccer
Strike
This is in response to your request to the Attorney General for recon­
sideration o f this Office’s April 18 memorandum dealing with the status o f
nonimmigrant alien soccer players during a strike affecting the soccer
league in which they play. That mem orandum considered whether the
players, temporarily employed in the United States by the N orth American
Soccer league on so-called “ H visas,” 8 U .S.C . § 1101(a)(15)(H), could
lawfully continue to work during the strike, and whether those who chose
to honor the strike might lawfully remain in the United States. It con­
cluded that the Immigration and Nationality Act (INA) and applicable
regulations o f the Immigration and Naturalization Service (INS) neither
required deportation o f those who chose not to work during the strike nor
barred players from continuing to work if they chose to do so.
You take issue with this conclusion, pointing out that it has been “ long­
standing immigration policy” to bar the use o f temporary alien labor
whenever a labor dispute involving a work stoppage is in progress. You
state that under INS regulations no nonimmigrant workers may be ad­
mitted into the United States during the pendency o f a strike at their place
o f prospective employment; and that nonimmigrants already in employ­
ment at the beginning o f the strike are required to discontinue work. You
believe that the interpretation o f these regulations in our memorandum
will have “ deleterious consequences outside the instant soccer dispute in
that employers will be encouraged to stockpile docile alien labor” as in­
surance against a strike by their domestic workers. In addition, you note
the possible collateral foreign policy consequences if injury or other harm
to alien strikebreakers should occur.
At the A ttorney General’s request, we have undertaken additional
research into the legal issues presented. We have reviewed a num ber of
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documents (including those discussed in your request) that were not
available to us at the time our original memorandum was prepared and are
helpful in understanding the position that INS has taken over the years.
On the basis o f the materials that we now have, we are inclined to agree
that INS has indeed interpreted its regulations in the way you suggest, that
is, INS has interpreted them to mean that nonimmigrant aliens tem po­
rarily employed in this country must leave their employment in the event
o f a strike.
The INS regulation appears in P art 214 o f title 8 o f the Code o f Federal
Regulations (“ Nonimmigrant Classes” ) at § 214.2(h)(10); it reads as
follows:
A petition [for admission] shall be denied if a strike or other
labor dispute involving a work stoppage or layoff o f employees is
in progress in the occupation and at the place the beneficiary is to
be employed or trained; if the petition has already been ap­
proved, the approval o f the beneficiary’s employment or training
is automatically suspended while such strike or other labor
dispute is in progress.
There are similar prohibitions in the regulations against employment o f
nonimmigration students during a strike, § 214.2(f)(6), and o f nonim ­
migrant intra-company transferees § 124.2(l)(3a). In addition, the regula­
tions provide that resident alien commuters, so-called “ green-card” com­
muters, will not be permitted to reenter the United States to work at a
place where a labor dispute involving a work stoppage is in progress.
§ 211.5(d).1
The regulation applicable to nonimmigrant aliens on H visas was pro­
mulgated in 1965. According to a memorandum prepared by an INS staff
member at the time, it was designed to bring the regulations governing
temporary workers into accord with those applicable to students. The
restriction on student employment, promulgated a few m onths earlier,
provided that permission for a student to work would be “ automatically
suspended during the period when a strike or other labor dispute involving
a work stoppage or layoff o f regular employees occurs at his place of
employm ent.” The memorandum states:
It is believed that the Regulations relating to H nonimmigrants
should contain a similar provision so that it is clear that the Serv­
ice does not authorize the use o f H workers in situations involv­
ing strikes or labor disputes. [Emphasis added.]
As you correctly point out, § 214.2(h)(10) has not been limited by INS to a
prohibition on an alien’s continuing to work during a labor dispute, but
has also been broadly construed by that agency to prohibit an alien’s par­
ticipating in a strike.
1 This regulation was struck down by the C ourt o f Appeals for the N inth Circuit in Sam
Andrews’ Sons v. Mitchell, 457 F. (2d) 745 (1972), as an abuse o f the A ttorney G eneral’s
discretion under the Immigration and Nationality Act (INA).
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In light o f this history o f administrative construction o f the regulation,2
we have reassessed our conclusions, focusing now not on the meaning o f
the regulation but rather on its validity as so construed. After careful con­
sideration, we continue to have serious doubt whether § 124.2(h)(10)
would be upheld if applied to require that nonimmigrant alien employees
cease working in a situation like the soccer strike. This is so for two related
reasons, both o f which were touched on in our mem orandum. First, the
broad and unconditional requirement that an employee withhold his serv­
ices during a work stoppage would appear to impinge on the individual’s
rights under § 7 o f the National Labor Relations Act (NLRA), and, poten­
tially, to upset the balance struck by Congress under that Act between
labor and management, without serving any discernible purpose under the
Immigration and Nationality Act. As you recognize, the two laws must be
construed in a m anner calculated to minimize conflict between them.
Second, while the Attorney General’s authority under § 214(a) o f the
INA, 8 U .S.C . § 184(a) to impose conditions upon a nonim migrant’s visa
is certainly very broad, at least in the absence o f some more specific fac­
tual inform ation about how this regulation relates to the purposes o f the
INA in a case like the soccer strike, we question whether his authority ex­
tends this far. As we noted in our m em orandum , the conditions imposed
must have some reasonable relationship to ends that are permissible under
the INA, particularly in cases where those conditions are inconsistent with
other constitutional or statutory guarantees. C f , Kleindienst v. Mandel,
408 U.S. 753, 769 (1972) (violation o f visa terms on previous visit suffi­
cient grounds for exclusion o f applicant for admission under § 212(a)(28)
and (d)(3)). We have been pointed to no specific instance o f employer
“ stockpiling” or other abuse o f the tem porary worker system that en­
forcement o f this regulation could resolve.
That the present regulation can be enforced only through the institution
o f deportation proceedings adds to our concern. The purpose for which an
H worker is adm itted is to fill a gap in the domestic labor market for the
benefit o f the employer. A rule that triggers deportation without some
finding that the conditions o f entry no longer exist or that there are some
statutory grounds for deportation seems to us likely to be held
unreasonable in many situations. We think it would present particularly
troublesome issues if invoked to deport an individual solely because he
engaged in concerted activity against his employer.
The theory underlying the present regulation, as we understand it, was
to preserve as neutral a role as possible between INS and the tem porary
alien worker in a labor dispute. Recognizing that the goal o f neutrality
2 Section 214.2(h)(10) has been actually enforced on only one occasion since its prom ulga­
tion—in connection with the 1976 baseball strike. It is our understanding, however, that
none o f the nonimm igrants involved in that situation had actually entered the United States
at the time o f the strike. There is thus no precedent for the regulation’s application to in­
dividuals actually at work in this country at the time a labor dispute arises.
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is an appropriate one for INS, and at the same time that there may be
many situations in which it would be equally appropriate under the INA to
limit alien involvement in domestic labor disputes, we have undertaken to
assist INS in drafting a regulation that would be more precisely tailored to
the purposes o f the INA and less likely to precipitate conflicts with the
NLRA.
You have closed by offering the assistance o f your Solicitor’s Office in
reconsidering this Departm ent’s interpretation o f the regulation. At a
meeting called to discuss this matter last week, we were informed by your
Solicitor’s Office that while the Departm ent o f Labor was interested in be­
ing informed o f any proposed changes in the INS regulations, it was not
interested in participating in their development. We would indeed ap­
preciate whatever assistance those knowledgeable in your Department
have to offer, and we would particularly find it valuable to have its active
involvement in considering the preparation o f a new regulation.
Jo h n M . H a rm on
Assistant A ttorney General
Office o f Legal Counsel
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